At Present Shahjahanpur Tehsil Behror District Alwar (Raj) v. Prabhudayal S/o Jainarayan, R/o Shahjahanpur Behror

Judgment

1. Prabhudayal S/o Jainarayan, R/o Shahjahanpur Behror District Alwar (Raj) (Died During The Suit) 1/1. Rajendra Prasad S/o Krishan Joshi, R/o Shahjahanpur Behror District Alwar (Raj) 1/2. Upendra Kumar S/o Krishan Joshi, R/o Shahjahanpur Behror District Alwar (Raj) 1/3. Mahendra Kumar S/o Krishan Joshi, R/o Shahjahanpur Behror District Alwar (Raj) 1/4. Saroj D/o Krishan Joshi, R/o Shahjahanpur Behror District Alwar (Raj) 1/5. Urmila D/o Krishan Joshi, R/o Shahjahanpur Behror District Alwar (Raj) 1/6. Meena D/o Krishan Joshi, R/o Shahjahanpur Behror District Alwar (Raj) 1/7. Gajendra S/o Somdutt Joshi, R/o Shahjahanpur Behror District Alwar (Raj) 1/8. Ravindra S/o Somdutt Joshi, R/o Shahjahanpur Behror District Alwar Raj) 1/9. Sunil S/o Somdutt Joshi, R/o Shahjahanpur Behror District Alwar (Raj) 1/10. Nitin Kumar S/o Somdutt Joshi, R/o Shahjahanpur Behror District Alwar (Raj) 1/11. Manju D/o Somdutt Joshi, R/o Shahjahanpur Behror District Alwar (Raj) 1/12. Sunita D/o Somdutt Joshi, R/o Shahjahanpur Behror District Alwar (Raj)

3. Devendra S/o Somdutt Joshi, R/o Shahjahanpur District Alwar Jaibhagwan S/o Dalchand, R/o Village Gadi District Rewari Haryana At Present R/o Shahjahanpur Tehsil Behror District Alwar ----Respondents For Appellant(s)

: Mr. Neeraj Sharma For Respondent(s) : [2025:RJ-JP:23107] (2 of 7) [CSA-629/2018] HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 27/05/2025 Order

1. Instant second appeal is preferred by appellant plaintiff Hari Keshav aggrieved from dismissal of civil regular appeal no. 3/2014 (13/2013) by learned Additional District Judge no.2, Behror, District Alwar on 01.10.2018 affirming the judgment and decree dated 17.07.2013 in civil suit no. 20/2000 passed by learned Civil Judge (Senior Division) Behror, District Alwar.

2. Learned counsel for appellant while relying upon grounds of appeal submitted that the appellant plaintiff has filed a suit for declaration and permanent injunction for a property mentioned in para no.2 of plaint which earlier belongs to Madanlal. He further submitted that one Foju Ram has filed a civil suit against Madanlal about the same property and said suit of Foju Ram was dismissed. He further submitted that afterwards the plaintiff has purchased the property from Madanlal and since than plaintiff is in possession. Learned counsel further submitted that the defendants taking advantage of absence of plaintiff have claimed the suit property and threatened to dispossess the plaintiff. He also submitted that the plaintiff is entitled to procure possession of this property, from defendants, who illegally occupied the property. He also submitted that the plaintiff led his evidence and on the basis of evidence the plaintiff has established that the plaintiff has acquired all rights and title from Madanlal who was rightful owner of suit property. He also referred the findings of the trial court and the appellate court and submitted that both the courts below have [2025:RJ-JP:23107] (3 of 7) [CSA-629/2018] misread the evidence and misconstrued the provision of law, which gives rise to filing of the instant appeal. At last, he submitted that the grounds give rise to substantial question of law as suggested in para no. M of the memo of appeal.

3. Aforesaid contentions were opposed by learned counsel for appellant and perused the record.

4. In brief, the facts of the case are that the appellant plaintiff has filed a suit for declaration, possession and permanent injunction against defendant no.1 Prabhu Dayal, Devendra and Jai Bhagwan. During pendency of this civil suit, Prabhu Dayal and his legal heirs were substituted. The plaintiff has claimed ownership on the basis of sale deed dated 14.05.1999, registered in pursuance of agreement to sale dated 11.08.1998. The defendants have filed written statement and on the basis of pleadings, seven issues were framed by the trial court. Both the parties have led their oral and documentary evidence. Issue no.1 was decided against the plaintiff and issue no.2 was also decided against the plaintiff. The trial court has observed that the predecessor-in-title of plaintiff was not in possession even before

1991. Issue no.4 was decided in favour of plaintiff but issue no.5 against the plaintiff whereas issue no.6 was found as not relevant. Issue nos. 3 and 7 were decided against the plaintiff. Ultimately, the suit of plaintiff was dismissed.

5. The appeal is preferred before learned Additional District Judge and after considering the grounds as raised by both the parties, issue nos. 1 and 2 were jointly decided against plaintiff and so the issue no.3 which ultimately led to dismissal of appeal. [2025:RJ-JP:23107] (4 of 7) [CSA-629/2018]

6. Herein this case, the first ground is whether the Madanlal was rightfully entitled to transfer the suit property to the plaintiff and second whether Madanlal has handed over the possession to the plaintiff. Both these issues are factual in nature and both these issues were decided against the plaintiff on the basis of evidence on record. No doubt about that civil suit no. 138/1999 filed by Foju Ram against Madanlal was dismissed but the record suggested that the appeal is preferred by Foju Ram which was disposed on the basis of compromise on 07.11.1997 and documents Ex. D/11 and D/12 were filed on record. The presence of counsel for Madanlal was also noticed in the appeal.

7. The trial court and the appellate court have considered a fact that Sarpanch of Village Panchayat, Jagmal Singh was examined as DW-4 in favour of defendants and patta issued by Village Panchayat Ex. D/9 and D/10 is produced along with permission for construction Ex. D/5 and D/6.

8. The trial court and the appellate court have decided issue nos. 1 and 2 on the basis of evidence of the parties and same is in accordance with material on record and there is no perversity or illegality in the findings recorded by the trial court, therefore, the grounds does not give rise to any substantial question of law.

9. Section 100 of CPC provides for second appeal in case wherein the High Court is satisfied that the case involves a substantial question of law. Thus, the First Appellate Court is final court on facts and in second appeal normally cannot re-appreciate the evidence or facts. [2025:RJ-JP:23107] (5 of 7) [CSA-629/2018]

10. Just to determine whether a question is substantial question of law or not, was laid down by a Constitution Bench of Hon’ble Supreme Court in case of Chunilal V. Mehta & Sons. Ltd. Vs. Century Spg. and Mgf. Co. Ltd. AIR 1962 SC 1314, as under: "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

11. Recently Hon’ble Supreme Court in case of Suresh Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar & Ors. (Civil Appeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022 decided on 21.09.2023) considered the scope of Section 100 of CPC and summarised the law as under:

13. The jurisprudence on Section 100, CPC is rich and varied. Time and again this Court in numerous judgments has laid down, distilled and further clarified the requirements that must necessarily be met in order for a Second Appeal as laid down therein, to be maintainable, and thereafter be adjudicated upon. Considering the fact that numerous cases are filed before this Court which hinge on the application of this provision, we find it necessary to reiterate the principles. 13.1 The requirement, most fundamental under this section is the presence and framing of a “substantial question of law”. In other words, the existence of such a question is sine qua non for exercise of this jurisdiction. 13.2 The jurisdiction under this section has been described by this Court in Gurdev Kaur v. Kaki (2007) 1 SCC 546 (Two-Judge Bench) stating that post 1976 amendment, the scope of Section 100 CPC stands drastically curtailed and narrowed down to be restrictive in nature. The High Court’s jurisdiction of interfering under Section 100 CPC is only in a case where substantial questions of law are [2025:RJ-JP:23107] (6 of 7) [CSA-629/2018] involved, also clearly formulated/set out in the memorandum of appeal. It has been observed that: “At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the section is that the appeal shall be heard only on that question.” Gurdev Kaur (supra) was referred to and relied upon in Randhir Kaur v. Prithvi Pal Singh & Ors. (2019) 17 SCC 71 13.3 In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 a Bench of three Judges, held as under in regard to what constitutes a substantial question of law:- a) Not previously settled by law of land or a binding precedent. b) Material bearing on the decision of case; and (c) New point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. Therefore, it will depend on facts of each case. Such principles stand followed in Government of Kerala v. Joseph 2023 SCC Online SC 961 and Chandrabhan v. Saraswati 2022 SCC Online SC 1273.

16.5 Interference on findings of fact permitted in exceptional cases, i.e., when finding is based on either inadmissible or, no evidence. This Court in Dinesh Kumar v. Yusuf Ali (2010) 12 SCC 740 referring to various other cases held:- a) It is not permissible for High Court to reappreciate evidence as if it was the first appellate court unless findings were perverse. b) Finding of fact can be interfered in exceptional circumstances as rarity, rather than a regularity. c) Scrutiny of evidence in second appeal is not prohibited but has to be exercised upon proper circumspection. [2025:RJ-JP:23107] (7 of 7) [CSA-629/2018]

12. In case of Amar Singh Vs. Dalip Singh (2012) 13 SCC 405, Hon’ble Supreme Court explained the purpose of framing question of law in following manner: “a) The purpose of framing of substantial question of law is to give the parties an opportunity to come prepared on that particular question. b) When a substantial question of law is formulated by the Court then the same must be made known to parties and thereafter they have to be given an opportunity to advanced arguments thereon. c) If any additional questions were framed at the time of hearing, the Court must hear the parties on that question as well.”

13. Hon’ble Court in case of Chandrabhan Vs. Saraswati 2022 SCC Online (SC) 1273 (decided on 22.09.2022) has summarised principle relating to Section 100 of CPC in following words:- “(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof.”

14. In view of discussion made hereinabove, the second appeal sans merit and liable to be dismissed.

15. In view of above, the second appeal is hereby dismissed.

16. Misc. application, if any, stands disposed of. CHETNA BEHRANI /88 (ASHOK KUMAR JAIN),J